Assisted Dying in Australia: A Values-Based Model for Reform
Book chapter in Ian Freckelton and Kerry Petersen, Tensions and Traumas in Health Law (2017, Federation Press)
Posted: 9 Jan 2018
Date Written: January 4, 2018
Assisted dying demonstrates starkly the tensions and traumas of health law as Australia, like jurisdictions around the world, wrestles with proposed changes to make voluntary euthanasia and/or assisted suicide lawful. Tensions are evident in the entrenched and opposing policy positions of individuals and organisations about whether reform should occur. And even those advocating for a change in the law will disagree about what should and should not be permitted and how a permissive regime should be regulated. These different positions are often driven by different ideological perspectives and are embedded in deeply held personal values and beliefs.
Assisted dying debates raise issues of trauma too. In our sophisticated health system which boasts a very high standard of palliative care, death is generally well-managed with the patient’s pain and symptoms being adequately controlled. Yet, this is not always possible. There is trauma for a small cohort of people whose suffering (whether physical, psychological, or existential) cannot be satisfactorily alleviated and who seek assistance to die. This trauma can extend to their loved ones and their treating teams.
The debate over whether we should reform our law on euthanasia and assisted suicide has been particularly prominent in Australia over recent years. We have seen bills drafted in all but one Australian state, parliamentary committee inquiries, police investigations, action by medical regulators, and a media-fuelled public debate. There has also been considerable movement towards liberalising euthanasia and assisted suicide internationally. We will expand on both Australian and international developments shortly.
The goal of this chapter is not to rehearse all of the arguments for and against reform. Instead, we advance a values-based model for assisted dying. These values – life, autonomy, freedom of conscience, equality, the rule of law, protecting the vulnerable, and reducing human suffering – are based on existing Australian legal principle, for example as reflected in common law, legislation or conventions or treaties that have been ratified by Australia. Drawing on these values, we conclude that the current criminal law prohibition on assisted dying cannot be justified and instead propose a model that permits and regulates assisted dying in certain circumstances. Our model is guided by the values identified but also draws on arguments based on reason and practice (consistent with the values), including the experience of assisted dying in other jurisdictions.
Keywords: Assisted dying, euthanasia
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